The discontinuance of Priadel, a lithium-based medication for the treatment of bipolar disease by the pharmaceutical company, Essential Pharma, has resulted in the UK’s principal competition regulator, the Competition & Markets Authority(“the CMA”) , launching an investigation under Chapter II of the Competition Act 1998 for alleged abuse of a dominant position.
The investigation will look at whether Essential Pharma has abused its dominant position in relation to lithium-based medicines for treating bipolar disorder (“Lithium Based Medicines”) in the UK. The company sells these drugs under the brand names Priadel and Camcolit. Essential Pharma is proposing to withdraw the supply of Priadel to UK patients. The consequences of such a withdrawal would mean that thousands of patients would need to switch to alternative, more expensive, lithium treatments, such as Camcolit which the company also produces. The CMA believes that by its actions Essential Pharma could be abusing its dominant position in the supply of Lithium Based Medicines in the UK.
A considerable number of patients in the UK that take a lithium-based drug to manage their condition rely on Priadel. Medical bodies and others have raised serious concerns about the withdrawal of the drug in the UK. The likely effect on patients could be profound exposing them to possible health complications. It would also significantly raise costs to the NHS which is already battling unprecedented pressure due to the coronavirus (COVID-19) pandemic. Therefore, the CMA felt it had to act to protect patients and the NHS alike.
The Department of Health and Social Care (DHSC) had sought an interim measures order from the CMA under section 35 of the Competition Act 1998 requiring Essential Pharma to put on hold its withdrawal of Priadel while the CMA’s investigation was conducted. However, following the opening of the CMA’s investigation, Essential Pharma informed DHSC that it would continue to supply the drug to allow discussions to take place on pricing, thereby removing the immediate threat to patients. The CMA therefore did not need to rule on the interim measures’ application at this time but the CMA’s investigation remains open.
This is the latest in a long line of cases brought by the CMA against pharma companies relating to pricing issues. The Essential Pharma case bears certain similarities to the Office of Fair Trading’s (the predecessor organisation to the CMA) case against Reckitt Benckiser (“RB”) for abuse of a dominant position in 2011. In that case the Office of Fair Trading(“OFT”) fined RB £10.2 million at the end of its investigation. The OFT found that RB had abused its dominant position on the market for the NHS supply of alginate and antacid heartburn medicines by withdrawing and de-listing Gaviscon Original Liquid from the NHS prescription channel in 2005 thereby forcing doctors to prescribe, and pharmacies to dispense, a more expensive form of the antacid and indigestion remedy called Gaviscon Advance Liquid also manufactured by RB.
